Courts’ Authority to have access to Extrinsic Aids for interpretation
“The decision in Pepper v Hart [1] removed from the law an irrational exception. When a court is carrying out its constitutional task of interpreting legislation it is seeking to identify the intention of Parliament expressed in the language used. This is an objective concept. In this context the intention of Parliament is the intention the court reasonably imputes to Parliament in respect of the language used. In seeking this intention the courts have recourse to recognised principles of interpretation and also a variety of aids, some internal, found within the statute itself, some external, found outside the statute. External aids include the background to the legislation, because no legislation is enacted in a vacuum. It has long been established that the courts may look outside a statute in order to identify the 'mischief' Parliament was seeking to remedy. Lord Simon of Glaisdale noted it is 'rare indeed' that a statute can be properly interpreted without knowing the legislative object.[2] Reports of the Law Commission or advisory committees, and government white papers, are everyday examples of background material which may assist in understanding the purpose and scope of legislation.[3]” Before the decision in Pepper v Hart a self-imposed judicial rule excluded use of parliamentary materials as an external aid. The courts drew a veil around everything said in Parliament. This had the consequence that a statement made in a government white paper, issued by the relevant government department before legislation was introduced, could be used as an external aid. But if the same statement were made by a minister of the department in Parliament when promoting the Bill in one or other House, the courts were strictly unable to take cognisance of the minister's statement.
In relaxing this self-imposed rule the House enunciated some practical safeguards in Pepper v Hart. These were intended to keep references to Hansard within reasonable bounds. One of these safeguards is that the parliamentary statement must be made by the minister or other promoter of the Bill. In imposing this cautionary limitation the House was not, I believe, intending to attribute to ministerial statements some special status, thereby encroaching upon the court's constitutional task of determining objectively what was the intention of Parliament in using the language in question. A clear and unambiguous ministerial statement is part of the background to the legislation. In the words of Lord Browne-Wilkinson in Pepper v Hart, such statements 'are as much background to the enactment of legislation as white papers and Parliamentary reports'. But they are no more than part of the background. As I emphasised in R v Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd[4], however such statements are made and however explicit they may be, they cannot control the meaning of an Act of Parliament[5].
Suggestions have been made that unequivocal ministerial statements made in Parliament regarding an ambiguous provision in a Bill may have a more exalted role. In his influential article 'Pepper v Hart[6], LORD STEYN noted it may be unobjectionable for a judge to use Hansard to identify the mischief at which a statute is aimed. But he rightly drew attention to the conceptual and constitutional difficulties in treating the intentions of the government revealed in debates as reflecting the will of Parliament, as distinct from the possibility that they may give rise to an estoppel or the like against the government As observed by courts “A statute is ambiguous if it “can be read by reasonable persons to have different meanings . . [7]”This statement reveals as much as it conceals and further it has also been observed that, However, simply because “'”the parties disagree as to the meaning or the applicability of [a statutory] provision does not of itself render [the] provision ambiguous or of doubtful, uncertain or unsure meaning.[8]” A statute “is not ambiguous simply because different interpretations are conceivable.[9]” Rather, a statute must be subjected to analysis under traditional rules of statutory construction to determine if a statute is ambiguous for “'[r]ules of interpretation are resorted to for the purpose of resolving an ambiguity . . . .[10]”. It is only after all other avenues of statutory analysis are exhausted that this Court should resort to liberally construing the statute.[11]”
[1] Pepper v Hart [1993] AC 593
[2] Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 647
[3] Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003) at paragraph 56 per LORD NICHOLLS OF BIRKENHEAD
[4] R v Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd [2001] 2 AC 349, 399,
[5] Wilson and ors. [supra] per LORD NICHOLAS
[6] ; A Re-examination' (2001) 21 OJLS 59
[7] Lawson v. County Comm'n of Mercer County, 199 W. Va. 77, 81, 483 S.E.2d 77, 81 (1996) (per curiam)
[8] Habursky v. Recht, 180 W. Va. 128, 132, 375 S.E.2d 760, 764 (1988) (internal quotations and citations omitted).
[9] State v. Keller, 143 Wash. 2d 247, 276, 19 P.3d 1030, 1035 (2001) (footnote omitted), cert. denied, 534 U.S. 1130, 122 S. Ct. 1070, 151 L. Ed. 2d 972 (2002)
[10] Habursky, 180 W. Va. at 132, 375 S.E.2d at 764 (quoting Crockett v. Andrews, 153 W. Va. 714, 719, 172 S.E.2d 384, 387 (1970))
[11] Cf. United States v. Shabani, 513 U.S. 10, 17, 115 S. Ct. 382, 386, 130 L. Ed. 2d 225, 231 (1994) (noting the rule that ambiguous statutes are to be read with lenity in favor of a defendant “applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.
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